Ruling on Eavesdrop Frees Theft Suspect

SPECIAL TO THE TIMES

An Oxnard burglary suspect walked out of jail free Friday because a prosecutor had an investigator eavesdrop on a conversation between the defendant and his attorney.

In the culmination of a legal battle waged all year, the state Court of Appeal ruled Friday that the prosecutor's behavior was so shocking, dismissal of the criminal case was the only way to rectify the situation.

"The sanction is severe but . . . it pales when compared to the conduct which compels this court to (act)," 2nd District Justice Kenneth Yegan wrote in a 17-page opinion. "What has happened here must not happen again."

The defendant, Robert Lee Morrow, 30, had been in custody for more than a year, charged with burglarizing a Port Hueneme motel.

He has sought dismissal of his case since January, when Deputy Dist. Atty. Stacy Ratner ordered her investigator to listen to a conversation between Morrow and his attorney, so Ratner could find out if the trial was going to interfere with a ski trip she had planned.

The conversation between Morrow and Deputy Public Defender Mary Fielder took place in a holding cell adjacent to the courtroom. According to court documents, the cell door was ajar and investigator Katherine Smith positioned herself in the courtroom so she could hear the conversation.

The state attorney general charged Ratner and Smith in May with felony eavesdropping. The charge later was dropped by a Superior Court judge because the pair did not use an electronic device to listen to Morrow's conversation with Fielder.

Yegan, writing for the unanimous three-member court, took particular offense to the fact that the eavesdropping took place "within the hallowed confines of the courtroom, where the rule of law and fairness should be revered."

"Our justice system will crumble should those, in whose hands are entrusted its preservation and sanctity, betray its fundamental values and principles," Yegan wrote.

The district attorney's office issued a written statement in response to the court's ruling, and officials refused to comment further.

"It is regrettable that the underlying incident occurred and that as a result this serious residential burglary case cannot now be prosecuted," the statement said.

"This case is a reminder that prosecutors must adhere to a higher standard of conduct than is required of other participants in the criminal justice system," the statement continued. "We recognize and accept that reality . . . and do not condone conduct which falls below this standard."

Dist. Atty. Michael D. Bradbury has consistently fought against the dismissal of Morrow's burglary charge, arguing instead that the matter was properly dealt with by removing Ratner and Smith from the case.

Ratner has since been assigned to the district attorney's child support unit, and Smith handles trial preparation investigations.

Prosecutors also argued in court hearings that the case should not be dismissed because there was no evidence that Morrow had been harmed by the eavesdropping.

But the appeals court noted that the reason there was no evidence of harm was because Ratner and Smith refused to testify about what happened, choosing instead to invoke their right against self-incrimination.

The irony of that was not lost on Yegan, who wrote that Ratner and Smith "obtained refuge under the same constitutional umbrella that should have protected (Morrow) from their conduct."

Public Defender Kenneth I. Clayman said the court's opinion was "a victory for all lawyers and clients."

"I can't think of a more important thing than that an attorney and a client can converse in private and not be overheard by the other side," Clayman said.

And Fielder, whose conversation with Morrow was at the center of the controversy, said she was delighted with the ruling.

"The opinion is wonderful," she said. "It's very eloquent, and I couldn't state it any better myself."

Attorneys said Friday that because Ratner's conduct resulted in the dismissal of a criminal case, the incident must be reported to the California State Bar, which licenses attorneys and has the power to discipline them.

Clayman said his office has made no attempt to notify the bar.

Although prosecutors and defense attorneys said Friday they knew of no other Ventura County case exactly like this, Yegan chastised prosecutors for ignoring earlier warnings.

"We, ourselves, have warned prosecutors in the past," Yegan wrote. "Yet some prosecutors do not seem to be listening."

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